California OAH special education order · November 5, 2018
Order Denying Request for Continuance
OAH Case No. 2018090670 · ALJ Tiffany Gilmartin
OAH denied Fremont's request to continue hearing dates because the district's late hiring of counsel, who had a conflicting hearing elsewhere, did not show good cause.
This case went to decision
Student v. Fremont Union High School District: Fremont Union High must provide door-adjacent curb-to-curb transportation inside a gated complex and reimburse the family's mileage. (2018)
Summary
Fremont Union High School District asked to continue the hearing dates. It said it had represented itself until November 2, 2018, and its newly hired counsel could not prepare within seven days because of another due process matter. Parent opposed the request. OAH found that Fremont failed to show good cause, noting that continuances are disfavored given the 45-day timeline, and denied the motion. A separate order to show cause issued the same day did reset the hearing dates.
Why it matters
A district that waits until the eve of hearing to hire counsel cannot count on a continuance, especially when counsel took the case knowing about the scheduling conflict. Parents can successfully oppose continuance requests that rest on a party's own delay.
Key authority cited
- 34 C.F.R. § 300.515(a), (c)
- Ed. Code, § 56502, subd. (f)
- Ed. Code, § 56505, subd. (f)(3)
- Cal. Code Regs., tit. 1, § 1020
- Cal. Rules of Court, rule 3.1332
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2018090670 v. ORDER DENYING REQUEST FOR
CONTINUANCE
FREMONT UNION HIGH SCHOOL
DISTRICT.
On November 2, 2018, Fremont Union High School District filed a request to continue the dates in this matter with the Office of Administrative Hearings, based upon counsel for Fremont’s delayed appearance in the matter as counsel of record. In counsel’s declaration, counsel stated Fremont was self-represented in the matter until November 2, 2018 when it was apparent the matter would likely proceed to due process hearing. When Fremont contacted counsel, counsel promptly agreed to representation with full knowledge of the pending due process hearing and an additional conflict of a separate due process matter in another district. Counsel stated due to these conflicts, she would be unable to prepare for hearing within the next seven days. Parent filed an opposition to Fremont’s motion on November 2, 2018.
The prehearing conference was initially scheduled for Friday, November 2, 2018.
When the PHC was called, Fremont participated but Parent did not attend. Before issuing an order to show cause why the matter should not be dismissed for Parent’s failure to appear, Fremont was given an opportunity to orally argue its motion to continue Fremont did not provide any additional facts to support good cause.
A due process hearing must be conducted and a decision rendered within 45 days of receipt of the due process notice unless an extension is granted for good cause. (34 C.F.R.
§ 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal. Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored. Good cause may include the unavailability of a party, counsel, or an essential witness due to death, illness or other excusable circumstances; substitution of an attorney when the substitution is required in the interests of justice; a party’s excused inability to obtain essential testimony or other material evidence despite diligent efforts; or another significant, unanticipated change in the status of the case as a result of which the case is not ready for hearing. (See Cal. Rules of Court, rule 3.1332(c).) OAH considers all relevant facts and circumstances, including the proximity of the hearing date; previous continuances or delays; the length of continuance requested; the availability of other means to address the problem giving rise to the request; prejudice to a party or witness as a result of a continuance; the impact of granting a continuance on other pending hearings; whether trial counsel is engaged in another trial; whether the parties have stipulated to a continuance; whether the interests of justice are served by the continuance;
and any other relevant fact or circumstance. (See Cal. Rules of Court, rule 3.1332(d).)
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is denied as Fremont failed to demonstrate good cause exists for granting a continuance. Accordingly, Fremont’s motion is DENIED.1
IT IS SO ORDERED.
DATE: November 5, 2018
TIFFANY GILMARTIN
Administrative Law Judge Office of Administrative Hearings On November 5, 2018, an Order regarding Order to Show Cause was issued.
As a result of this order, the hearing dates were continued and the newly scheduled dates can be located there.